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Tribal government subject to NLRB jurisdiction over labor relations at Indian-owned casino

By Ronald Miller, J.D.

The NLRB’s jurisdiction over Native American tribes is a matter of contention on several fronts these days. A tribe in Michigan just filed the latest lawsuit challenging the Board’s revised representation election rules after being served with a Steelworkers petition at its casino. The Senate Committee on Indian Affairs has taken up S. 248, which would bar the NLRB from exercising jurisdiction on tribal lands. And the Board itself showed restraint by declining to assert jurisdiction over the Chickasaw Nation in an election dispute at one of its casinos (applying the test it had established in San Manuel Indian Bingo & Casino). Adding to this flurry of activity, a divided Sixth Circuit held a casino resort operated by the Little River Band of Ottawa Indians was subject to the NLRB’s jurisdiction. Thus, it enforced a Board order requiring the tribe to cease and desist from enforcing an ordinance that conflicted with the NLRA. The tribe could not show that application of the Act to the casino undermines “tribal self-governance in purely intramural matters” where the tribal ordinance principally regulates the labor-organizing activities of tribal employees, and specifically casino employees—most of whom are not members of the tribe, the appeals court determined. Judge McKeague filed a dissented (NLRB v. Little River Band of Ottawa Indians Tribal Government, June 9, 2015, Gibbons, J.).

The Little River Band is a federally recognized Indian tribe with approximately 4,000 enrolled members, most of whom live within or near the Band’s aboriginal lands in the state of Michigan. The Band’s constitution vests its legislative powers in a Tribal Council and grants power to the Tribal Council to operate gaming pursuant to the Indian Gaming Regulatory Act (IGRA). Pursuant to the IGRA, the tribe established and operated a casino and resort on tribal land. The resort employed 905 employees, the majority of whom were neither enrolled members of the tribe or Native American. Moreover, the majority of the resort’s customers are non-Native Americans who come from outside of tribal lands in Michigan, other states, and Canada.

In 2005, the Tribal Council enacted the Band’s Fair Employment Practices Code (FEPC) to govern a variety of employment and labor matters and, by its express terms, it applies to the resort, its employees, and unions that seek to represent employees. The FEP code granted the tribe the authority to determine the terms and conditions of employment under which collective bargaining may occur, prohibits strikes, requires unions to obtain a license, and excepts from the duty to bargain any matter that would conflict with the laws of the tribe, the duration of collective bargaining agreements, drug and alcohol testing, and decisions to hire, layoff, recall or reorganize the work duties of employees.

Self-government. On March 28, 2008, the Teamsters filed a charge against the tribe asserting that it committed an unfair labor practice in violation of the NLRA. The only argument the tribe presented in its defense was that the Board lacked jurisdiction because the application of the NLRA would impermissibly interfere with the tribe’s inherent tribal sovereignty to regulate labor relations on its tribal lands. The Board concluded it had jurisdiction, held that the tribe violated the NLRA as alleged, and issued a cease and desist order. In reaching this decision, the Board applied its holding in San Manuel Indian Bingo & Casino.

In San Manuel, the Board adopted a framework, based on principles first enumerated by the Ninth Circuit in Donovan v. Coeur d’Alene Tribal Farm, to determine whether federal Indian law or policy constrains its jurisdiction. Under that framework, “a general statute in terms applying to all persons includes Indians and their property interests.” General statutes do not apply to Indian tribes if: “(1) the law ‘touches exclusive rights of self-government in purely intramural matters’; (2) application of the law would abrogate treaty rights; or (3) there is ‘proof’ in the statutory language or legislative history that Congress did not intend the law to apply to Indian tribes.” Applying this framework, the Board determined that application of the NLRA to the casino would not interfere with the Band’s “exclusive rights of self-government in purely intramural matters.” The tribe petitioned for review, and the Board cross-appealed for enforcement of its order.

Statute of general application. The NLRA is a statute of general applicability and is silent as to Indian tribes. From one angle, this case is about whether the pertinent statutory terms “employer” and “person,” which trigger the Board’s jurisdiction, encompasses Indian tribes. The Board interprets the NLRA’s definition of “employer” to cover Indian tribes and argues that its construction is reasonable. From another angle, this case concerns the limits and contours of inherent tribal sovereignty and the proper interpretation of the silence of a generally applicable congressional statute against the background of federal Indian law. Thus, the tribe asserts that under principles of federal Indian law the NLRA cannot preempt a tribal government’s exercise of its inherent sovereign authority without a clear expression from Congress.

The Supreme Court has long been suspicious of tribal authority to regulate the activities of non-members and is apt to view such power as implicitly divested, even absent congressional action. While the application of general federal statutes to Indian tribes is presumptive; they do not always apply. However, the tribe contended that the Coeur d’Alene framework insufficiently protects inherent tribal sovereignty. However, the Sixth Circuit was not persuaded by the tribe’s contention that generally applicable congressional statutes cannot preempt any exercise of a tribal government’s inherent sovereign authority without a clear expression from Congress.

Tribal sovereignty. Comprehensive federal regulatory schemes that are silent as to Indian tribes can divest aspects of inherent tribal sovereignty to govern the activities of non-members. The Supreme Court has held several aspects of tribal sovereignty to regulate the activities of non-members to be implicitly divested, even in the absence of congressional action. A clear statement is not required for a federal statute of general applicability creating a comprehensive regulatory scheme to apply to a tribe’s regulation of the activities of non-members where such regulation is not necessary to the preservation of tribal self-government.

Here, the court determined that the Coeur d’Alene framework accommodates principles of federal and tribal sovereignty. The Coeur d’Alene framework begins with a presumption that generally applicable federal statutes also apply to Indian tribes, reflecting Congress’s power to modify or even extinguish tribal power to regulate the activities of members and non-members alike. The exceptions enumerated by Coeur d’Alene then supply Indian tribes with the opportunity to show that a generally applicable federal statute should not apply to them.

Comprehensive regulatory scheme. The NLRA is a generally applicable, comprehensive federal statute. It prohibits “employers” from engaging in unfair labor practices and empowers the Board to prevent such practices. In this instance, the tribe could not show that application of the NLRA to the casino undermined “tribal self-governance in purely intramural matters.” The tribal self-governance exception was designed to except internal matters such as the conditions of tribal membership, inheritance rules, and domestic relations from the general rule that otherwise applicable federal statutes also apply to Indian tribes. Intramural matters concern conduct the immediate ramifications of which are felt primarily within the reservation by members of the tribe. Thus, the tribe’s enactment of an ordinance that principally regulated the labor-organizing activities of tribe employees and specifically of casino employees, was unlike those exercises of tribal government that concern purely intramural affairs.

Dissent. In a separate dissenting opinion, Judge McKeague contended that the majority’s decision impinges on tribal sovereignty, encroaches on Congress’s plenary and exclusive authority over Indian affairs, conflicts with Supreme Court precedent, and unwisely creates a circuit split. According to the dissent, under governing law, the Board’s assertion of jurisdiction is plainly beyond its authority. Moreover, he argued that the majority identified no persuasive reason for its complicity in the Board’s usurpation of Congress’s authority.